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Exby-Stolley v. Board of County Commissioners

United States District Court, District of Colorado

March 20, 2015





THIS MATTER is before the Court on two motions. Specifically, Defendant filed a Motion for Summary Judgment (ECF No. 25) as to Plaintiff’s claims under the Americans With Disabilities Act (“ADA”) on May 28, 2014. On July 23, 2014, Plaintiff filed a Motion to Strike (ECF No. 32) declarations Defendant submitted in its Reply in Support of Defendant’s Motion for Summary Judgment. I first address the background of the case and then state my rulings on the motions.

This case arises out of Plaintiff’s employment with Defendant. Plaintiff commenced employment with Defendant in the Consumer Protection Program (“Division”) as an Environmental Health program Supervisor on February 19, 1992. Plaintiff terminated her employment with Defendant for personal reasons on September 7, 2000. On September 5, 2006, Plaintiff returned to the Division as an Environmental Health Specialist I (“EHS I”). Plaintiff received a promotion to Environmental Health Specialist II (“EHS II”) on January 2, 2007.

On December 19, 2009, Plaintiff fell and fractured her right arm, among other injuries, while working at an H1N1 Flu clinic. Between December 2009 and May 2012, Plaintiff was placed on temporary restrictions as she reinjured her arm, underwent surgery, and rehabilitated. Plaintiff was assigned to various temporary positions during her recovery. On May 11, 2012, Plaintiff underwent a Functional Capacity Evaluation (“FCE”), ordered by Dr. John Charbonneau, in order to assess Plaintiff’s ability to use her hands and arms in light of her injury. On June 7, 2012, Dr. Charbonneau placed Plaintiff on the following permanent restrictions:

Permanent restrictions in the form of maximum lifting of 15 pounds. Maximum repetitive lifting of 10 pounds. Maximum carrying of 15 pounds. She may occasionally reach overhead with the right upper extremity. She may occasionally reach away from the body with the right upper extremity. She may occasionally crawl. No repetitive use of the right upper extremity. No work involving supination of the right forearm (working with the palm turned upwards). May lift up to 5 pounds with the right upper extremity alone.

ECF No. 25, pp. 12-13. Dr. Charbonneau concluded that Plaintiff “has a 43% impairment of the right upper extremity.” Id. at 13. He further concluded that Plaintiff’s level of impairment is “equivalent to 26% whole person permanent partial impairment.” Id.

As a result of Plaintiff’s permanent work restrictions caused by her injury, it became evident that Plaintiff required accommodations in order to accomplish her job. On April 16, 2012 and June 19, 2012, Plaintiff met with Defendant in regard to her injury and employment. However, Plaintiff and Defendant disagree as to whether these meetings and related efforts were sufficient to address Plaintiff’s need for accommodations prior to her departure. On June 21, 2012, Plaintiff resigned from her position as an EHS II. In doing so, she explained that after the physician’s final evaluation and meeting with management, it was apparent that she was no longer able to accomplish the required duties in the EHS II job description.

For the reasons stated below, the motion to strike is denied. The summary judgment motion is also denied.


Plaintiff’s motion seeks to strike the affidavits of Jewel Vaughn, Trevor Jiricek, Debra Adamson, Mark Wallace, and Michelle Raimer in Defendant’s Reply Brief to its Motion for Summary Judgment. In particular, Plaintiff asserts that each of these affidavits should be stricken because they contain new evidence and are inconsistent with prior testimony. Plaintiff further states that the affidavits of Jiricek and Wallace should also be stricken because they are based on mere belief. I disagree that Defendant has raised any statements in its Reply Brief that are new, inconsistent, or based on mere belief.

“Reply briefs reply to arguments made in the response brief-they do not provide the moving party a new opportunity to present yet another issue for the court's consideration.” Gates Corp. v. Dorman Products, Inc., No. 09-cv-02058, 2009 WL 4675099, at *2 (D. Colo. Dec. 7, 2009) (emphasis in the original) (internal quotation marks omitted). Reply brief arguments are not new if presented to directly rebut response brief arguments. Id. Should a conflict arise between an affidavit submitted in response to the summary judgment motion and an earlier affidavit, “courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue.” Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). Moreover, “summary-judgment affidavits must be based on personal knowledge and . . . statements of mere belief must be disregarded.” Ney v. City of Hoisington, Kansas, 264 F.App'x 678, 681 n. 3 (10th Cir. 2008).

A. Vaughn Affidavit

Vaughn’s affidavit directly rebuts the assertion in Plaintiff’s Response that interns are available to Defendant on an unpaid basis and therefore could have provided assistance to Plaintiff at no cost. In her affidavit, Vaughn asserts that interns are not available to Defendant on an unpaid basis and must be treated as paid employees. Moreover, Vaughn’s affidavit does not contradict Jiricek’s deposition testimony that Defendant engages interns, from time to time, for training purposes only. Defendant has adequately explained the alleged contradiction by ...

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